Watson v. Township

• Decision Date: 10 March 1923
• Docket Number: 24,314
• Citation: 213 P. 1051,113 Kan. 130
• Parties: KENT WATSON, Appellee, v. PARKER TOWNSHIP, Appellant
• Court: Kansas Supreme Court

213 P. 1051

113 Kan. 130

KENT WATSON, Appellee, v. PARKER TOWNSHIP, Appellant

No. 24,314

Supreme Court of Kansas

March 10, 1923

Decided January, 1923.

Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Defective Highway--A Township Road. In an action for damages against a township for injuries sustained by a traveler because of a defective highway, the record examined and held sufficient to show that the highway was a township road.

2. SAME--Notice of Defective Highway to Township Trustee. The record sufficiently shows that the township trustee had the requisite five days' notice of the defective highway to subject the township to liability.

3. SAME--Whether Road Was Defective--A Question for Jury. The evidence was sufficient to make it a question for the jury's determination whether the road was defective, notwithstanding the general rule that a township board having control of an ordinary rural highway is not bound to keep the full width of the road in safe condition for public travel.

4. SAME--Contributory Negligence a Jury Question. The question of plaintiff's contributory negligence was properly left to the jury under proper instructions.

5. SAME--Excluded Evidence--Not Reviewable. Rule followed that excluded evidence not submitted in conformity with section 307 of the civil code presents nothing for review.

6. SAME--Instructions. Objections to testimony and criticisms of the trial court's instructions examined, and not sustained.

7. SAME--Verdict Not Excessive. The amount of the verdict and judgment, together with the evidence, considered, and held not to require or justify a remittitur.

Walter S. Keith, Harold McGugin, both of Coffeyville, S. H. Piper, and W. B. Grant, both of Independence, for the appellant.

Charles D. Welch, of Coffeyville, for the appellee.

OPINION

DAWSON, J.:

This was an action for damages against a township for injuries sustained by plaintiff because of a defective township road. Plaintiff was driving his car southward on the west side of the usually traveled part of the road, when he saw another car coming towards him from the south at high speed. Although the beaten or traveled part of the [40-foot] road was thirteen and a half feet wide, yet because of caution to avoid a collision with the oncoming car, plaintiff veered to the right so that his car ran into the unused portion of the highway, which was thickly covered with weeds. These weeds concealed a ditch; the weeds on the right side of his car dropped into it; plaintiff drove slowly for about 30 feet trying to get out of the ditch, but his car turned over and he was seriously injured.

The jury made special findings and returned a verdict for plaintiff, and judgment was entered accordingly. Some of the special findings read:

"Q. 3. On July 1, 1921, were there any guard rails next to said ditch along said road at the place where plaintiff's car went into said ditch? A. No. . . .

"Q. 5. Do you find that Lawrence Kauffman, trustee, knew or had actual knowledge, five days before plaintiff's alleged injury: (a) Of the presence of said ditch at said place? A. Yes.

"(b) Of the presence of weeds in said ditch? A. Yes.

"(c) That said weeds in said ditch rendered said road dangerous? A. Yes.

"(d) That on account of said ditch, the traveled part of said road was narrower at the place where plaintiff's car went into said ditch? A. Yes.

"(e) That there was no guard rail along said ditch? A. Yes.

"(f) That a guard rail along the side of said road next to said ditch would serve as a warning to travelers of the presence of said ditch? A. Yes.

"Q. 6. If you find that plaintiff was guilty of any negligence which contributed to his injury, please state of what the negligence consisted. A. None. . . .

"Q. 8. When plaintiff first started into the ditch, what effort if any did he make to stop his car before he upset? A. Applied brakes. . . .

"Q. 10. Could plaintiff in his automobile, traveling south and on the right side of the road, see the ditch at the right side of the road? A. No.

"Q. 11. If you answer this question 'No,' please state why he could not see the ditch? A. For weeds.

"Q. 12. At the place where plaintiff started into the ditch, how many feet wide was the road on which vehicles could travel and pass each other? A. 13 1/2 feet. Traveled road.

"Q. 13. At the place where plaintiff upset how many feet wide was the road upon which vehicles could pass each other? A. 13 1/2 feet. Traveled road.

"Q. 14. Was the road defective? A. Yes.

"Q. 15. If you answer the last question 'Yes,' then state what were the defects? A. Deep ditch. . . .

"Q. 19. Was the ditch in the traveled way? A. In the right of way."

Defendant assigns various errors, contending, first, that the evidence failed to show that the highway where plaintiff was injured had been designated as a township road, in accordance with section 15 of chapter 264 of the Laws of 1917. But it seems to have been taken for granted in the trial court that the highway was a township road. The township trustee was called as a witness for plaintiff, and he testified that the township board had employed a man to mow the weeds in that ditch, and that they were so mowed about June 1, a month before the accident. This exercise of jurisdiction was some evidence that it was a township road. We note, also, that the trustee in the course of his examination casually admitted that it was a township road.

The next point urged is that the evidence did not show that the trustee had five days' notice of the defect in the road. We discern no insufficiency in the evidence in this respect. One witness testified: "I told him [the trustee] the road was dangerous and my wife was afraid to drive along there. I asked him to work the road and told him the road was too narrow." Indeed, the entire township board inspected this particular part of the road about a month before the accident, and it was pursuant to this inspection that the trustee hired a man to cut the weeds so that travelers sould see and avoid the ditch. Under this state of facts, the court must hold that the statutory prerequisite to the township's liability--five days' notice to the trustee of the defect in the road (Gen. Stat. 1915, § 722)--was fully satisfied. (Mosier v. Butler County, 82 Kan. 708, 109 P. 162; Higman v. Quindaro Township, 89 Kan. 476, 480, 132 P. 215; Sims v. Williamsburg Township, 92 Kan. 636, 141 P. 581, syl. P 1 C, 141 P. 581; Abbott v. Wyandotte County, 94 Kan. 553, 146 P. 998; Watkins v. Harper County, 95 Kan. 166, 147 P. 822; Dubourdieu v. Delaware Township, 106 Kan. 650, 189 P. 386, syl. P 6, 189 P. 386.)

The next contention is that the evidence did not prove that the road was defective. The facts touching the width of the highway, the width of the traveled portion of it, the location of the road in a rural community and the amount of travel on the road, the presence of the ditch and its concealment by the prolific growth of weeds, were all fairly well established. Did these facts show a defect? Defendant cites many cases which hold, in substance, that it is not necessary to keep the full width of a rural highway fit for public travel, and that where a sufficient portion of its width is maintained in a safe and passable condition to serve the reasonable needs of the public in that locality, the fact that outlying and unused portions of the road are impassable or dangerous, and yet without barriers, does not constitute the sort of defect for which the municipality or quasi-municipality is liable. (McFarland v. Emporia Twp., 59 Kan. 568, 570-572, 53 P. 864; Town of Spencer v. Mayfield, 43 Ind.App. 134; Morse v. Belfast, 77 Maine, 44; Macomber v. City of Taunton, 100 Mass. 255; Bell v. Village of Wayne, 123 Mich. 386, 82 N.W. 215; Monongahela City v. Fischer, 111 Pa. 9, 2 A. 87; Brophy v. Cleveland Twp., 236 Pa. 426, 84 A. 822; Wessels v. Stevens County, 110 Wash. 196, 188 P. 490; Branegan v. Verona, 170 Wis. 137, 174 N.W. 468; Elliott on Roads and Streets, 3d ed. vol. 1, § 588, to vol. 2, § 800.)

Such doubtless is the general rule, but unless the court could say as a matter of law that the admitted or established facts showed that this road was not defective, the question was one for the jury's determination. Here it was shown that at least one user of the road was afraid of it, that the ditch was not an ordinary one for mere drainage, but in part had been dug by an adjacent land owner for earth to make an embankment against flood water, that it was deeper than required for road drainage, that the township trustee and township board themselves considered it a matter of such solicitude for the safety of travel as to direct that the weeds in the ditch should be mowed so that travelers might see and avoid the ditch, that the traveled portion of the road was rather narrow--only thirteen and a half feet wide, that the edge of the ditch was only two feet from the traveled path, and that there was no guard rail of warning of its presence. Moreover, the jury were sent to view this ditch, and it seems, under all these circumstances, that it would be a judicial invasion of the jury's functions to hold arbitrarily that the road was not defective. Here, as in Sims v. Williamsburg Township, supra, it must be said:

"It is not possible for the court to declare as a matter of law that an occurrence of the kind under consideration was not naturally to be anticipated and that reasonable prudence did not require a barrier to be placed along this wall, or other measure be taken, to protect users of the highway from injury. The question was one of fact for determination by the jury, and in the opinion of the jury and...